Ignoring Constitutional Constraints

When the law no longer commands respect, one can pretty well write off a nation that pretends to be a constitutional republic. How can The People respect the law when the government doesn’t? President Obama seems to regard the law as a mere inconvenience.

In his must-read August 5 article “The Front Man” at National Review, Kevin Williamson sums up our Harvard Law School president’s taste for lawlessness. “He has spent the past five years methodically testing the limits of what he can get away with, like one of those crafty velociraptors testing the electric fence in Jurassic Park.”

With a compliant Congress in his first two years, and a divided, gridlocked Congress thereafter, Mr. Obama has been able to “get away with” an awful lot. One of ways the president flouts the law is by not enforcing it, such as in his recent “decision” to delay enforcing the employer mandate of ObamaCare. Where does the president get off thinking he has the authority to refuse to enforce a law? The president doesn’t seem to understand his job.

Also, under Obama the executive branch just makes up law, a task generally reserved for the legislative branch. Williamson reports that “although the IRS has no statutory power to collect Affordable Care Act–related fines in states that have not voluntarily set up health-care exchanges, Obama’s managers there have announced that they will do so anyway.”

That announcement brings to mind a provision in the ACA concerning enforcement of the individual mandate: “In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure. [Sec. 5000A(g)(2)(A), page 249]” With regard to this prohibition, it remains to be seen whether Obama’s minions at the IRS will announce “that they will do so anyway”?

The president might also conclude that the $95 penalty in 2014 for noncompliance with the individual mandate isn’t nearly enough to offset what government is going to be spending on ObamaCare. Obama might then “decide” to raise the penalty himself, and deliver his usual spiel: “If Congress won’t act, I will.”

Besides his extra-constitutional decisions to ignore or vacate the law, Obama also unilaterally exempts his friends from the law. Williamson: “Neither does the law empower him arbitrarily to exempt millions of his donors and allies in organized labor from the law, but he has done that too.” Obama has been granting waivers from the ACA mandates since 2011. The latest is his exemption of Congress and its staff from the mandate. Obama is buying off Congress.

To read more about the “legal gymnastics” involved in this exemption, read the August 7 article “Members Only” in the Wall Street Journal. Obama is turning the law upside down in order to bail out Congress. So the taxpayer will continue to pay for the Cadillac health insurance plans of Congress. “Illegal dispensations for the ruling class, different rules for the hoi polloi.”

The law is not the law if it doesn’t apply to everyone. Obama’s arbitrary exceptions from the ACA for his friends are utterly corrosive; they breed contempt for all law. We cannot have contempt for law if we are to remain a constitutional republic. If laws are foisted upon the citizenry against their wishes, as was the case with ObamaCare, the government invites massive noncompliance at the very least.

Congress should give the president a choice: Either agree to a postponement of everything in the ACA that was mandated to go into effect in 2014 (in which case Congress would pass a quick bill to that effect), or enforce the ACA in its entirety as written, including the employer mandate — either full steam ahead or a year-long delay of everything. That might be a better tactic for the GOP than trying to defund the ACA. In any case, if Obama doesn’t find that choice agreeable and instead chooses to go his merry way postponing only the employer mandate, then Congress should impeach and remove him from office. No president has the authority to pick and choose which laws he will enforce. The question is: How likely is it that the Democrat-controlled Senate would be up for such a showdown?

“If Congress won’t act, I will,” the president repeatedly assures us. But that’s not the way it works in a constitutional republic of laws. Nonetheless, Obama acts, and who’s going to stop him? As he lists the president’s unconstitutional power grabs, Williamson makes an unflattering comparison:

That President Obama has adopted President Nixon’s approach but limited himself to health care might be considered progress if he had not adopted as a general principle one of Nixon’s unfortunate maxims: When the president does it, it isn’t illegal. President Nixon’s lawlessness was sneaky, and he had the decency to be ashamed of it. President Obama’s lawlessness is as bland and bloodless as the man himself, and practiced openly, as though it were a virtue. President Nixon privately kept an enemies list; President Obama publicly promises that “we’re gonna punish our enemies, and we’re gonna reward our friends.”

Barack Obama, of course, is too cool to feel shame. So one wonders what’s next for our oh-so-cool presidente. Perhaps he’ll “decide” to bail out public worker unions in Detroit. Bondholders would no doubt again be stiffed, even though they’re supposed to be first in line for the proceeds of a bankruptcy.

The Supreme Court is partly responsible for Obama’s unconstitutional power grabs. In salvaging ObamaCare, the Court had to rewrite the law. Obama might surmise: If you can legislate from the bench, then you can legislate from the White House too. If the Supreme Court can rewrite the law then so can I. After all, I’m the cool one. In fact, I’m The One.

The Court made a grievous mistake in not reversing ObamaCare, and they could have ended it easily, as they had found it unconstitutional on two counts. Of course, given our president, had the Court struck down ObamaCare, Obama might have “decided” to enforce it anyway.

In rewriting the law in order to save it, the Court ruled that a penalty is a tax and a command is a choice. That paved the way for Obama’s lawlessness. We must hope that the Court is beginning to understand what its wretched ruling has wrought.

Velociraptors are so cool. Like all good velociraptors, President Obama continues to test the perimeter, nudging, poking, and shoving to see how much he can get away with and how far he can go. And with an in-the-tank media, an unmoored Court, and an irrelevant Congress, what’s to stop him?